Lillian A. Ferraro v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LILLIAN A. FERRARO, DOCKET NUMBER
Appellant, DA-315H-15-0364-I-1
v.
DEPARTMENT OF THE ARMY, DATE: January 28, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Lillian A. Ferraro, Deerfield Beach, Florida, pro se.
Donald T. Stevens, Esquire, Fort Sill, Oklahoma, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of her termination during the probationary period for lack of
Board jurisdiction. Generally, we grant petitions such as this one only when: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
*
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 On November 3, 2014, the appellant was appointed to the competitive
service position of Dental Hygienist, GS-0682-07, subject to completion of a
1-year probationary period. Initial Appeal File (IAF), Tab 13 at 6. She was
terminated effective April 10, 2015, on grounds that she “failed to demonstrate
fitness for continued employment.” Id. at 9; IAF, Tab 1 at 9. On appeal, the
administrative judge granted the agency’s motion to dismiss, finding that the
appellant did not meet the definition of “employee” set forth in 5 U.S.C.
§ 7511(a)(1), and that she had not alleged that her termination was based on
partisan political reasons or marital status discrimination. IAF, Tab 17, Initial
Decision (ID). She filed this petition for review. Petition for Review (PFR) File,
Tab 1.
ANALYSIS
¶3 On review, the appellant argues that she was discriminated against on the
basis of race, age, and national origin and retaliated against her when her
supervisor allowed younger colleagues, who were Latino, to harass and bully her.
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PFR File, Tab 1 at 2-4, 7-8, 11-13. The appellant asserts that the agency
would not tell her why she was being terminated and refused to supply her with
any documentation regarding her termination or pretermination counseling. Id.
at 2-3, 12-13. She asserts that the agency did not give her a notice of proposed
termination and an opportunity to respond before making the decision to
terminate her. Id. at 6-9, 11. She also asserts that the agency denied her union
representation, Employee Assistance Program counseling, and the opportunity to
file an equal employment opportunity complaint. Id. at 3-5, 7-10. The appellant
additionally argues that that the administrative judge failed to compel the agency
to submit any documents it held regarding her termination. Id. at 2, 5.
¶4 The Board does not have jurisdiction over all matters involving a Federal
employee that are allegedly unfair or incorrect. Johnson v. U.S. Postal
Service, 67 M.S.P.R. 573, 577 (1995). Rather, the Board’s jurisdiction is limited
to those matters over which it has been given jurisdiction by statute or
regulation. Id. An appellant bears the burden of proving by preponderant
evidence that her appeal is within the Board’s jurisdiction. 5 C.F.R.
§ 1201.56(b)(2)(i)(A). Generally, persons serving a probationary period do not
meet that definition of “employee” and do not have a statutory right of appeal.
Mastriano v. Federal Aviation Administration, 714 F.2d 1152, 1155 (Fed. Cir.
1983). For the Board to decide an adverse action appeal, a Federal employee
must meet the definition of “employee” set forth in 5 U.S.C. § 7511(a)(1). In that
statute, an “employee” is:
(A) an individual in the competitive service—
(i) who is not serving a probationary or trial period under an
initial appointment; or
(ii) who has completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less;
(B) a preference eligible in the excepted service who has completed
1 year of current continuous service in the same or
similar positions—
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(i) in an Executive agency; or
(ii) in the United States Postal Service or Postal Rate
Commission; and
(C) an individual in the excepted service (other than a
preference eligible)—
(i) who is not serving a probationary or trial period under an
initial appointment pending conversion to the competitive service;
or
(ii) who has completed 2 years of current continuous service in
the same or similar positions in an Executive agency under other
than a temporary appointment limited to 2 years or less.
5 U.S.C. § 7511(a)(1). The appellant was in the competitive service and serving a
probationary period. IAF, Tab 13 at 6, 9; see 5 U.S.C. § 7511(a)(1)(A)(i). She
has not alleged that she had completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less. See 5 U.S.C.
§ 7511(a)(1)(A)(ii). She thus does not meet the statutory definition of employee.
¶5 Probationers who do not meet the statutory definition of employee have a
limited regulatory right of appeal. 5 C.F.R. § 315.806(a). The appellant was
terminated for post-appointment reasons. IAF, Tab 1 at 9. Probationers
terminated for post-appointment reasons are entitled to be notified in writing as to
why they were separated and the effective date of the action. 5 C.F.R.
§ 315.804(a). The applicable regulation, however, does not include a right to
respond to a notice of termination. Id. Additionally, “[t]he information in the
notice as to why the employee is being terminated shall, as a minimum, consist of
the agency’s conclusions as to the inadequacies of his performance or
conduct.” Id. Here, the notice explained that the appellant’s termination was
“based on a pattern of unprofessionalism, discourteous, rude and inappropriate
behavior” towards other staff members at the dental clinic. IAF, Tab 1 at 9. The
notice she received thus was adequate. As a probationer terminated for post-
appointment reasons, the appellant’s appeal rights are limited to review of
whether her termination was based on partisan political reasons or marital status
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discrimination. 5 C.F.R. § 315.806(a), (b). She has not alleged either of these
reasons. Accordingly, although she has alleged other bases of discrimination,
see, e.g., IAF, Tab 10 at 3, 5, the Board cannot hear such claims absent an
otherwise appealable action, Wren v. Department of the Army, 2 M.S.P.R. 1, 2
(1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶6 The record evidence is sufficient to show that the appellant did not meet the
definition of employee set forth in 5 U.S.C. § 7511(a)(1). She was terminated for
post-appointment reasons during her probationary period. The appellant was
given an opportunity to allege facts that would allow her to her establish the
Board’s jurisdiction under 5 C.F.R. § 315.806(a), (b). IAF, Tab 2 at 2-5. She
did not do so. IAF, Tab 10; see IAF, Tab 15. Therefore, we will not disturb the
initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S. Court
of Appeals for the Federal Circuit. You must submit your request to the court at
the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
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title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.